Israel’s High Court of Justice issued a highly unconventional order on Wednesday, agreeing to hear a petition against Attorney General, Yehuda Weinstein for his failure to prosecute several radical Rabbis for incitement to racism and violence and sedition. The petition was submitted by some of Israel’s leading liberal religious organizations including the Reform Movement’s Israel Religious Action Center, the Conservative Movement, Kolech Religious Women’s Forum, Rabbis for Human Rights, and others. It seeks to compel Mr. Weinstein to prosecute Rabbis Dov Lior, Yitzchak Shapira, Yosef Yirmiahu Elitzur, and Yizchak Ginsburg of the Od Yosef Chai Yeshiva in Nablus. The four rabbis authored the treatise “Torat Hamelech” (The Law of the King), which allegedly justifies the killing of non-Jews in certain circumstances. The book was already the subject of heated public controversy when its existence became known to the public a few years ago. This controversy was reignited with Weinstein’s decision last year not to prosecute the authors.
The Court’s willingness to hear the case is itself unusual. By hearing the case, the Court is willing to second-guess the discretion of the very office charged with bringing criminal cases before the courts. This kind of decision challenges the separation of powers in a democracy, and places the court dangerously close to a position of initiating a criminal investigation on its own – a departure from the courts’ strictly adjudicative role into the investigatory domain of the prosecution. This is not a healthy situation for the institutions of state. The Court has heard only a handful of such cases over the years, most notably in the unfortunate prosecutorial decisions surrounding the trial of former president Moshe Katzav. Indeed, the Justices of the Court has always stressed how rare these kinds of cases should be. For this reason, It is strange that the Court should find a decision to refrain from prosecuting rabbis over a work of religious scholarship, albeit one of repugnant morality, as so controversial that it agreed to entertain the argument that it was a wholly unreasonable decision on the part of the Attorney General. Whatever its wisdom, this decision will be the subject of the Court’s deliberations in the months to come.
However, what is truly astonishing is the choice of respectable liberal religious organization to take this matter to court in the first place. After all, if anyone should wish to uphold the principle that religious conscience and dissenting scholarship should be free from government censorship, it is precisely those organization whose Rabbis are under the most persistent political attacks in Israel. Why would liberal religious organizations, many of which stood by the Women of the Wall as their members were being arrested by the police for donning prayer shawls, now clamor for the prosecution of rabbis for voicing unpopular opinions? Why would organizations that pride themselves on their moral rectitude take their deep moral disagreement out of the arena of public debate and into the courts?
The only way liberal Judaism can defeat the corrupt theology that values the life of a gentile less than the life of a Jew is by fighting it in the arena of public debate and teaching, where it has the clear moral high ground. Hounding the proponents of such ill begotten ideas in the courts and seeking their imprisonment will not defeat them. It will only serve to paint the most rabidly hateful rabbis as heroes of free speech, and make the advocates of religious pluralism take on the role of censors who are too insecure to stand up for their religious convictions without recourse to the secular state’s legal system.
The cause of Liberal Judaism, and the causes of equality, tolerance, and resistance to violence are not well served by bringing this case to court.